This Chapter will discuss the legality, or the absence of such, in states use of armed force through the use of case studies. The intention is to establish whether states act within the ambit of the most viable interpretation of relevant international law when using force against an aggressive or hostile state.
This chapter will now consider the justifications given by states when engaging in armed force and as such the legality of those justifications. This chapter will conclude with an evaluation of the force used in Iraq, Afghanistan and Libya. The next chapter will continue with a discussion of the wider legitimacy of those actions which are technically ‘illegal’.
There is firstly an important distinction to be made, that is the difference between jus ad bellum – the lawfulness of war, and jus in bello – the proper conduct of warfare regulated by the laws and customs of war including war crimes offences. This thesis is concerned mainly with the former, the jus ad bellum, although the concept of “aggression” that forms part of the latter will have some relevance. Is there a strict legal rule for any given use of force? And, if not, what are the wider justifications used by states?
As the major “subjects” of international law, States need to represent the international order because the order is itself an interstate-state in which treaty-making and custom are key sources. The role of states in ratifying treaty law and their actions that amount to customary international law are the main sources of law. Therefore, it is paramount that they adhere to the principles and rules of international law. International law recognises two exceptions to the prohibition on the use of force, action authorised by the UN Security Council under Chapter VII of the UN Charter and self-defence contained in Article 51.
In reality, state sovereignty is not as clear cut as the wording of the Charter would suggest.
In a literal sense, no intervention is permitted, except in applying Chapter VII. However, the idea of “humanitarian intervention” could provide an avenue for not respecting sovereignty in its entirety. If an intervention has good cause or legitimate justifications but is not strictly legal should derogation from state sovereignty be permitted? An example is the current
40 action in the Middle East. This use of force is supposedly designed to make the countries safer, and expel ‘rogue’ governments. Nevertheless ‘no matter how big or small,
superpower or rogue regime, each state’s sovereign ‘privacy’ is, at least in principle, to be protected.’138 Boas argument is questionable as he uses the qualifying phrase ‘in principle’
therefore suggesting that at some point it may be acceptable to intervene. This author would argue that ‘that point’ is where there are justifications on the grounds of humanity.
The real problem with the idea of state sovereignty is the difference in equality of states. All states should be equal under traditional theories of international law. However, the size of armies, nuclear and chemical weapons and ultimately power all lead towards a sense of inequality. Furthermore, the current UNSC consists of five permanent members who ultimately have hierarchical power over all other states. The inequality of states inevitably supports a realist interpretation of international law which suggests international law is a part of international relations. Political realism in particular accepts that states will act as politics dictate thus acknowledging that those more powerful states can yield authority over weaker states that do not have the ability to have a substantial influence in the international arena.
The UNSC can legally authorise the use of military action by states through Chapter VII of the UN Charter. Article 42 is the authorising section, which states:
‘Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.’
Individual and collective self-defence are a legal exception to the prohibition on the use of force, now contained within Article 51 of the UN Charter. Article 51 uses the term ‘armed attack. ’ Therefore, a state is only permitted to act under Article 51 if there has already been a state-sponsored strike: that is, an “act of aggression” or “use of force” from another state.
This is in contrast to the rule pre 1945; Brownlie writing in 1963 in reference to the
138 Gideon Boas, Public International Law – Contemporary Principles and Perspectives (Edward Elgar Publishing 2012) 320.
41 Briand Pact refers to the ‘necessary reaction against the use or threat of force.139 It would seem that the mere ‘threat’ of force such as military preparations on a state border has been deliberately omitted from the UN Charter.
States might try to justify their intervention under one of the headings discussed below. This would not automatically make the action lawful in a legalist sense; however supporters of realism and natural law theory could find legitimacy in the use of force with good justifications. Chapter VII action and self-defence are undoubtedly lawful; the other justifications are not as clear. This chapter will now consider each justification and its legal status in detail, continuing with an evaluation of the force used in Iraq, Afghanistan and Libya. The next chapter will continue with the morality of those actions which are technically ‘illegal’.
Interestingly, Roberts questions the terminology ‘technically’. ‘Unilateral uses of force are not illegal because they breach a technical rule; they are illegal because they breach a fundamental Charter obligation.’140 The “illegal” nature of the use of force can be vast, ranging from the NATO action in Kosovo which had no basis in international law, to the action in Libya 2011 - which merely went beyond Resolution 1973 in order to bring about a desired result supported by the UN. Therefore ‘technically’ in this thesis refers to those uses of force which might be illegal but which are still within the spirit or objectives of the agreed use of force. Furthermore, ‘technically illegal’ action in Kosovo was not condemned, nor were sanctions applied. Therefore, this author would argue that even though NATO applied an illegal use of force, it did not ‘breach a fundamental Charter obligation.’
Whereas Chapter two considered solely the legal element of uses of force in principle and on paper, this thesis now considers the use of force in action.
Anticipatory self-defence
Historically, it was generally assumed that customary law permitted anticipatory action in face of imminent danger. The Caroline Case of 1837 is an example of this where it was argued: ‘A necessity of self-defence and self-preservation, gave them the right to destroy
139 ibid 241.
140 A Roberts, ‘Legality vs. Legitimacy: Can Uses of Force Be Illegal But Jusitified?’ in P Alston and E Macdonald (eds), Human Rights, Intervention, and the Use of Force (OUP 2008) 186.
42 the ‘piratical’ vessel within US territory.’141 The key terms being ‘self-preservation’ and
‘necessity,’ which could be assumed here to permit anticipatory action when there is a known threat against the security of the state. However, in order to strike first the necessity of self-defence must be: ‘instant, overwhelming, leaving no choice of means and no
moment for deliberation.’142 Necessity must also be determined in light of the
circumstances; there must be no other reasonable alternative to avoiding the threat other than armed force.143 The threat must also be both imminent and extreme, and involve impending destruction.144 It is the use of the word ‘impending’ that suggests anticipatory action is permissible. It does not require an attack to have taken place.
Presently, the issue of anticipatory action is perhaps redundant. It has been debated at length in international law scholarship and cases. Hence, the founders of the UN Charter could have taken the opportunity to address it, if they had so wished. This would assume that it was purposefully omitted from the text. However, increasingly it has become
questionable whether there is a customary law right of states to engage in anticipatory self-defence. The text of Article 51 ’armed attack’ would suggest a negative answer to the question. The ICJ in the Nicaragua145 case did not take the opportunity to specify the content of the customary rules referred to in Article 51; in particular, whether it included the old rule providing for a right to anticipatory self-defence.146 Controversially, maintaining a rule against anticipatory action would ‘protect the aggressor’s right to the first stroke.’147 Furthermore, Article 51 does not ‘impair the inherent right of individual or collective self-defence.’ Inherently, customary law permitted anticipatory uses of force. Brownlie 148 does not agree, giving a vague reasoning that any argument to the contrary is either unconvincing or based on inconclusive pieces of evidence. By contrast, Corten argues ‘a strict reading of Article 51 is no longer tenable in the face of modern terrorism and aggression.’149 It must be remembered that Brownlie was writing over fifty years ago and hence Cortens argument is perhaps the more plausible in the current context. The proliferance of WMD and terrorist
141A D Sofaer, ‘On the necessity of pre-emption’ [2003] 14 European Journal of International Law 209-226.
142 The Webster Formula: http://www.judicialmonitor.org/archive_spring2009/generalprinciples.html accessed 28th August 2014.
143 A D Sofaer, ‘On the necessity of pre-emption’ [2003] 14 European Journal of International Law 209-226.
144 K. R. Stevens, Border Diplomacy (University Alabama Press 1989) 35.
145 Nicaragua v United States of America, ICJ, 27 June 1986, in ICJ Reports 1986.
146 Antonio Cassese, International Law (2nd edn, Oxford University Press 2005) 359.
147 Ian Brownlie, International Law and the Use of Force (Oxford University Press 1963)276-77.
148 ibid
149 Oliver Corten, ‘The Controversies Over the Customary Prohibition on the Use of Force: A Methodological Debate’ [2006] 16 European Journal of International Law 803-822.
43 groups could mean that anticipatory action is not only a possibility but is an essential
element of modern international law. Chemical warfare may mean that time is of the essence, and a state simply cannot wait for an attack to be launched, if it does so, it will be not be a state in a position to repel the attack.
Brownlie uses the terms anticipatory and preventive interchangeably in his text. Yet this is in itself problematic as it would appear there is no significant distinction between the two.
Anticipatory self-defence would suggest that an attack in foreseeable, a preventive use of force is to destroy the possibility of an attack. The two categories are closely related, but there is some distinction. Preventive action would suggest that an attack is only a potential, thus leading this argument to be weaker than anticipatory action which would imply that there is evidence to suggest an attack is likely. Although not identical neither is clearly identified as legal within the UN Charter.
If armed force is launched before the attack is ‘imminent,’ then there must be a
determination of the certainty of attack; and there must be a consideration of questions of
“proportionality.”150 The ‘defendant’ state must have a degree of confidence that armed force is to be used against them, however, at what level? WMD were identified as the reason for using force in Iraq. Yet the claims were still ill-founded. Therefore, one cannot be entirely certain of an attack until that attack has been launched. In addition, any force used to repel an ‘impending’ attack must be proportional. If the attack has not been launched, the amount of armed force needed may not be clear. Furthermore, if the ‘proof’ of attack is ill-founded, could self-defence from the defending state be considered “aggression” which the initiator state could then lawfully respond to with military force? It is a problematic circle. Fletcher & Ohlin reiterate this by stating: ‘If every state prosecuted its strategic interests by launching pre-emptive attacks, the world would indeed collapse back into a state of nature.’151 This is an interesting insight, and suggests that if every state responded to ‘ideas’ by launching attacks then the world would become a place of lawlessness.
Terrorism is a use of force that has led to states wanting to take pre-emptive action. The dangerousness of WMD means that a state may not have time to wait until an attack has
150 Ian Brownlie, International Law and the Use of Force (Oxford University Press 1963) 259.
151 George P Fletcher & Jens D Ohlin, Defending Humanity – When Force is Justified and Why (Oxford University Press 2008) 57.
44 been launched against them.152 Accordingly, is it possible that preventive or anticipatory self-defence now needs to be addressed by the UNSC and incorporated into the UN
Charter? Since August 1990 there has not been a determination of the existence of a breach of the peace by the UNSC. Instead, it has identified a ‘threat to the peace’. Could this lead to a doctrine of pre-emption being developed? To name but a few: Resolution 1973 (2011) of 17 March 2011, referred to the situation in Libya as a “continued threat to international peace and security.” In 2008 and 2009 the Council also determined that the situations in Afghanistan, Lebanon, the Sudan and Darfur continued to constitute threats to international peace and security.153 In 2004-2007 the Council identified certain generic threats to peace and security, such as the proliferation of weapons of mass destruction and the proliferation and illicit trafficking of small arms and light weapons.154 This is important because such identifications of ‘a threat to the peace’ are key arguments in the development of
anticipatory self-defence as a legal doctrine. If the UNSC are prepared to accept a “threat”, then they must also identify when such a threat can be avoided. Arguably, it would be absurd to suggest that a threat is real, but that nothing can be done until that threat is launched, particularly with reference to WMD.
The concept of anticipatory self-defence was supported by the UN High-Level Panel on Threats, Challenges and Change. This panel is clear that the threat must be imminent and nothing short of this should suffice. The report appears to give support to the position that a state can use force to prevent an imminent attack on its own territory.155 In light of the above commentary, this could be a welcomed addition.
Humanitarian Intervention
Another argument used by states for intervening with armed force is that of humanitarian intervention. Humanitarian intervention is the use of military force on the territory of a state, without that states consent, and with the goal of protecting innocent victims of large-scale atrocities. ‘The issue of humanitarian intervention arises in cases where a government has turned the machinery of the state against its own people, or where the state has
collapsed into lawlessness.’156 An example of this is the ethnic cleansing by Serbian forces in
152 John Janzekovic, The Use of Force in Humanitarian Intervention – Morality and Practicalities (Ashgate 2006) 102.
153 http://www.un.org/en/sc/repertoire/2008-2009/Part%20VII/08-09_Part%20VII.pdf p.9.
154 http://www.un.org/en/sc/repertoire/2004-2007/04-07_11.pdf p.943.
155 Gideon Boas, Public International Law – Contemporary Principles and Perspectives (Edward Elgar Publishing 2012) 334.
156 Nicholas J Wheeler, Saving Strangers Humanitarian Intervention in International Society (Oxford University Press 2000) 27.
45 Kosovo, 1999. In August 2014 a ‘humanitarian crises’ was described in Iraq.157 Civilians trapped on a mountain top with limited to no food and water supplies, prompted the USA to enter the country for the third time with armed force.
‘Humanitarian intervention’ has a long history. Three European powers, England, France and Russia intervened in Greece in 1827 to stop massacres by Turkey, and France intervened again in Syria in 1860 to stop the killings of Maronite Christians. Various European powers intervened in defence of Christians also in Crete (1866-1868), the Balkans (1875-1878) and Macedonia (1903-1908).158 As Brownlie states:
‘The classical writers on the law of nations stated in very general terms that a war to punish injustice and those guilty of crimes was a just war. By the end of the nineteenth century the majority of publicists admitted that a right of humanitarian intervention existed.159
This theory links a ‘just’ war with that of a humanitarian war. The two ideas could be linked but are not necessarily so. A ‘just’ war could extend far beyond the realms of humanity by a state seeking ‘justice’; this would share beliefs with natural law theory. Zolo also argues that
‘humanitarian interference’ could be ‘another incarnation of the doctrine of just war: an intolerable ethical and legal swindle, or, at best, an irresponsible self-delusion.’160 In contrast, humanity taken by itself is not as broad as Zolo might suggest. The use of force to protect citizens may be termed ‘just’ in that it is the right action to take, but this does not mean that it will revert back to the historical idea of engaging in a ‘just war.’
This second point made by Brownlie acknowledges more closely the link to
‘humanitarianism’. However, as with the present day, there is no further definition of the extent of the parameters of waging such a ‘humanitarian’ war.
A state which had abused its sovereignty by brutal and excessively cruel treatment of those within its power, whether nationals or not, was regarded as having made itself liable
157 Telegraph Newspaper 27th August 2014.
158 Ramesh Thakur ‘Humanitarian Intervention’ in The Oxford handbook of the United Nations, eds. Thomas G Weiss and Sam Daws (Oxford University Press 2007) 392.
159 Ian Brownlie, International Law and the Use of Force (Oxford University Press 1963) 338.
160 Danilo Zolo, Invoking Humanity – war, law and global order (Continuum 2002) 87.
46 to action by any state which was prepared to intervene. The doctrine was inherently
vague.’161
Brownlie offers no further explanation. In one respect, his idea is clear: humanitarian suffering warrants action, but the extent to which action is permitted is not. This theory is largely replicated in the present day. There is no succinct definition and no clear legal boundaries when it is not authorised by the UNSC.162
In Nicaragua163 the ICJ ruled against humanitarian intervention under specified conditions whilst recognising it had a legal basis in the remainder if pursued consistently and in a principled way: ‘If the provision of "humanitarian assistance" is to escape condemnation as an intervention in the internal affairs of another state, it must be limited to the purposes hallowed in the practice of the Red Cross, and above all be given without discrimination’
(paragraph 2). The practice of the Red Cross is to deliver food, water, shelter and medical aid. The Red Cross does not adhere to the practice of armed force stating that it should only
‘sound the alarm’ and will not use force to bring an end to hostilities.164
This case shows the two-sided nature of humanitarian intervention. Predominately, the argument against humanitarian intervention is its inconsistent nature. Without a clear doctrine it is not applied consistently and the political realist would assume that this is because of the intent of the powerful states to realise only their own politically defined
This case shows the two-sided nature of humanitarian intervention. Predominately, the argument against humanitarian intervention is its inconsistent nature. Without a clear doctrine it is not applied consistently and the political realist would assume that this is because of the intent of the powerful states to realise only their own politically defined